The Australian Workers' Union v Hyne & Son Pty Limited

[2013] FWC 4334

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Hyne & Son Pty Limited
(B2013/1002)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 3 JULY 2013

Proposed protected action ballot by employees of Hyne & Son Pty Ltd at Tuan Mill, Imbil Mill and Melawondi Mill.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (the AWU) for a protected action ballot order in relation to certain employees of Hyne & Son Pty Limited (the respondent).

[2] My associate was advised by the respondent that it had been served with the application and that the respondent would advance no substantive ground of opposition to an order being made (that is, the respondent did not challenge that the AWU had been and was genuinely trying to reach an agreement). The AWU has provided a Statement addressing the statutory grounds.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR538501] based on the draft order provided by the AWU has issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against Hyne & Son Pty Limited in the Federal Circuit Court, seeking authorisation for a protected action ballot to be held among the employees of Hyne & Son. The employees, who were members of the union, were seeking to organise a ballot to consider protected action, including potential strikes, in relation to their employment terms and conditions. The legal dispute centred on whether the union had satisfied the necessary preconditions for holding such a ballot, as required under the Fair Work Act 2009.

The primary legal issue before the court was whether the union had complied with the statutory requirements for a protected action ballot. Specifically, the court needed to determine if the union had correctly notified Hyne & Son of its intention to hold the ballot, and if the ballot was proposed in good faith for the purpose of achieving a better outcome for the employees in relation to their employment. The court also had to consider whether the union had followed the correct procedures in giving the required notice to the employer and whether the proposed action was related to the employees' workplace or employment terms.

The Federal Circuit Court found that the union had not complied with the statutory requirements for a protected action ballot. The court held that the union had failed to provide Hyne & Son with the necessary written notice of the proposed ballot, which was a critical precondition under the Act. Furthermore, the court determined that the union had not acted in good faith, as the proposed ballot was not genuinely intended to achieve a better outcome for the employees. Consequently, the court rejected the union's application for authorisation of the ballot.

As a result of the court's decision, the union's application for authorisation of the proposed protected action ballot was dismissed. The Federal Circuit Court did not grant the union permission to hold the ballot among the employees of Hyne & Son. This decision underscores the importance of adhering to statutory requirements and acting in good faith when seeking to organise protected action under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established